H-1A REGULATIONS FORMALLY RESCINDED

File this blog entry under the category of “of no value to anyone but historians and regulatory completists”. 

The H-1A was a nurse-specific nonimmigrant visa category in the 1990s.  Congress failed to extend the H-1A in 1997 and the last H-1A nurse visa expired in 2000.  The H-1A law was formally repealed by Congress in 1999 in Sec. 2(c) of the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-095, 113 Stat. 1312, 1316.

For reasons that must be clear to someone but are lost on me, the Department of Labor formally rescinded some of the underlying H-1A regulations on November 20, 2013.  To give you an idea of how far the H-1A has fallen on everyone’s radar screen, the H-1A was not even considered in this June Comprehensive Immigration Reform bill.

AILA ASKS FOR AOS DENIED FOR LACK OF A VISA SCREEN

AILA TSC Liaison Committee is seeking examples of healthcare worker adjustment of status cases denied on the grounds that no visa screen was included at the time the adjustment was filed. Please send a brief description of the case along with a copy of the denial to reports@aila.org, with "Visa Screen Denial" in the subject line.

USCIS: IMMIGRATION RELIEF FOR SEVEN CATEGORIES OF FILIPINOS

The USCIS has announced that Filipino nationals who are impacted by Typhoon Haiyan may be eligible for certain immigration relief measures:

1.  Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;

2.  Extension of certain grants of parole made by USCIS;

3.  Extension of certain grants of advance parole, and expedited processing of advance parole requests;

4.  Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;

5.  Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);

6.  Expedited adjudication of employment authorization applications, where appropriate; and

7.  Assistance to LPRs stranded overseas without immigration or travel documents, such as Permanent Resident Cards (Green Cards). USCIS and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

Philippine nationals should note that these provisions do not grant any extra rights or paths to those in the Philippines who may have been harmed as a result of the Typhoon.  These relief measures are limited to the seven situations described above. 

TYPHOON HAIYAN RECOVERY DONATIONS

Typhoon Haiyan (Typhoon Yolanda in the Philippines) was devastating to the Philippines.  Thousands are feared dead and countless others have been injured.  By any measure Typhon Haiyan was one of the worst natural disasters in human history.  If you would like to donate to help the victims of Typhoon Haiyan here are organizations that are helping.  Please take a minute and consider donating.

Doctors Without Borders: DWB’s work is based on the humanitarian principles of medical ethics and impartiality. The organization is committed to bringing quality medical care to people in crisis regardless of their race, religion, or political affiliation. 

Oxfam: Oxfam aid teams are on the ground in the Philippines and reporting urgent needs of food, clean water, medicine and shelter.

Global Red Cross: The global Red Cross network is responding to emergency needs in the Philippines with food, water, and relief supplies, and the American Red Cross is lending people, expertise and equipment to this massive effort.

DECEMBER 2013 VISA BULLETIN

The Department of State has just released the December 2013 Visa Bulletin.  This is the third Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The All Other Countries EB-3 date jumped a full year to October 1, 2011.  The Chinese EB-2 and EB-3 continued to be flipped: the Chinese EB-2 is worse than the Chinese EB-3.  Chinese nationals who are BE-2 may be able to file an EB-3.  Chinese EB-3s should check with their attorneys to effect this change.

Unfortunately the Philippine EB-2 and EB-3 barely moved.   Philippine EB-3 did get into 2007.India EB-3 actually retrogressed further back a few weeks. India EB-2 dropped all the way back to Nov 15, 2004. 

The Visa Bulletin contained these projections for the next few months: 

Visa Availability in the next coming months.

Employment First:  Current

Employment Second:

Worldwide:  Current

China:  Three to five weeks 

India:  No forward movement

Employment Third:
Worldwide:  This cut-off date has been advanced extremely rapidly during the past seven months in an effort to generate new demand.  As the rate of applicants who are able to have action on their cases finalized increases, it could have a significant impact on the cut-off date situation.  The rapid forward movement of this cut-off date should not be expected to continue beyond February.

China:        Expected to remain at the worldwide date

India:        No forward movement

Mexico:       Expected to remain at the worldwide date

Philippines:  Three to six weeks

Here is this month's complete chart:

December 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08NOV08	15NOV04	Current
EB-3	01OCT11	01OCT11	01SEP03	08JAN07

DECEMBER 2013 VISA BULLETIN PREDICTIONS

AILA has just reported that the Department of State’s Charlie Oppenheim spoke to the AILA Washington D.C. Chapter dinner. While his statements are not official, Mr. Oppenheim is often correct with his predictions.   

• The India EB-2 cutoff date is expected to retrogress from June 2008 (which is what it is in the November 2013 Visa Bulletin) to 2004 or 2005 in December 2013. This is due in large part to Indian nationals "upgrading" from EB-3 to EB-2.

• India EB-3 will continue to move very slowly.

• Worldwide EB-2 is expected to remain current.

• Worldwide EB-3 could move up to 2011 in the December Visa Bulletin.

• Worldwide EB-1 is expected to remain current.

• China EB-2 will continue to move slowly.

• China EB-3 is expected to continue to be ahead of a China's EB-2 priority date.  

PERM FILINGS IN THE WAKE OF THE iCert BLACKOUT

Last month’s government shutdown made it impossible to file PERM Applications.  The problem has continued into November, as the iCert portal has been inundated with a large volume of filings.  The Department of Labor fortunately has issued a blog posting explaining that Employers and Employees will not be prejudiced.

According the blog posting, any PERM filing on or before November 14, 2013 will be considered timely filed even if the PWD or recruitment has nominally expired.  The iCert system will warn the user that the application contains information that will cause the application to be denied, but such an application will not be denied for this reason.  This accommodation applies only to PERM applications that had timely recruitment or prevailing wage determinations during the shutdown period and are now unsuitable for filing due to expired recruitment or prevailing wage determinations.

Similarly, any response due to the DOL between October 1 -18, 2014 will be deemed timely filed if received at the DOL prior to November 14, 2013.

The DOL blog posting also notes that any document that was filed with their office between October 1 – 18, 2013 will be given a receipt date of October 18, 2013.  Since October 18, 2013 is before November 14, all of these documents are also timely.

BOO-SILLO UNKENHOLT

Every year our office transforms for a few days from Musillo Unkenholt to Boo-Sillo Unkenholt.  Check out our Facebook page to see more pictures of our Halloween-themed office.

IS CIR ALIVE OR DEAD?

With the government shutdown ended, the conventional wisdom is that the Republican Party’s strategy backfired.  The Republican Party’s approval ratings have plummeted with the American public.   

More moderate forces, such as Reps. Mario Diaz-Balart (R-FL), Paul Ryan (R-WI), and Eric Cantor (R-VA) think Comprehensive Immigration Reform may be the way for the Republicans  to stop the falling polling numbers. 

The politics on this will be the key.  On one hand, this may be Maj. Leader John Boehner’s (R-OH) last chance to salvage his legacy.  On the other hand, a substantial rift has developed within the GOP ranks.  Tea Party members, whose unofficial leadership includes Sen. Ted Cruz (R-TX) and Sen. Mike Lee (R-UT), contend that the shutdown strategy was effective and likely will not seek to compromise on immigration reform.  One interesting development may be that while Sen. Cruz remains popular, Sen. Lee’s own ratings have plunged.  His fellow Utah Senator, Orrin Hatch (R-UT), has refused to endorse him for re-election.

The Democrats seem like they are ready to deal.  If Pres. Obama and the Democratic leadership can get a compromise on immigration it would cement two of Pres. Obama’s prime domestic policy aims.  The next few weeks will be important.  No pundits believe that a Comprehensive Immigration Reform bill that drags into 2014 has much of a chance at survival.

GOVERNMENT SHUTDOWN ENDS; SERVICES SLOWLY COMING ON-LINE

Late yesterday the Senate and House each passed a budget bill, which was signed by President Obama.  The bill’s signing ends the two week federal government shutdown.  The shutdown obstructed many immigration services, notably the Department of Labor’s iCert system, which was shuttered.  Through the iCert system employers and their lawyers apply for Labor Condition Applications (LCAs), Prevailing Wage Determination (PWDs) and Permanent Employment Labor certification (PERM).  The discontinuation of these programs meant that H-1Bs and PERM-based green card applications effectively stopped.    

As of this writing, the iCert system remains inoperable.  It is expected that the iCert system will commence operating within 24 hours.  At that time MU Law immediately will begin filing LCAs, PWDs, and PERM applications.  We are prioritizing those matters with a legal deadline or business necessity. 

Other immigration services were slowed by the shutdown.  It is expected that those services should return to normal processing times in the near future. 

I-9 TIPS FOR STAFFING COMPANIES

The US Immigration and Customs Enforcement (ICE) has recently announced an increase in Form I-9 enforcement.  Form I-9 completion and retention is often problematic for companies who place workers at third-party worksites because the Form I-9 documents must be seen in person by the employer or the employer’s representative.  The April 2013 update to the US government’s M-274, Handbook for Employers, reconfirmed the best practice for Form I-9 completion in these difficult situations. 

In these instances, the best practice is for the employer to specially designate someone to personally review the documents and complete Form I-9, Section 2, Employer or Authorized Representative Review and Verification.  Ideally this person should be a Notary Public, although the rule allows anyone acting on the employer’s behalf, such as another employee at the worksite.  

NOVEMBER 2013 VISA BULLETIN

The Department of State has just released the November 2013 Visa Bulletin.  This is the second Visa Bulletin of the 2014 US Fiscal Year, which began on October 1, 2013.  

The All Other Countries EB-3 date jumped about three months from July 2010 to October 1, 2010.  The Chinese EB-2 and EB-3 dates each progressed several months.

Unfortunately the Indian and Philippine EB-2 and EB-3 remained stuck exactly where they were for the October 2013 Visa Bulletin.

Here is the chart:

November 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	08OCT08	15JUN08	Current
EB-3	01OCT10	01OCT10	22SEP03	15DEC06

MANAGING LCA ISSUES DURING THE GOVERNMENT SHUTDOWN

The issues described in this MU Visa Advisor are complex and very much driven by the facts of your case.  Please do not hesitate to contact MU Law if you have any questions about these issues.

The Federal Government Shutdown has caused the Department of Labor to furlough about 80% of its workforce.  As a result the DOL’s iCert System, which is the manner through which LCAs are filed, has been turned off.  It is impossible to file LCAs, leading to many questions from H-1B employers. 

Background: The LCA System

The Labor Condition Application (LCA) is the centerpiece of the H-1B program.  It serves two primary functions.  First, it forces the H-1B employer to certify that the wage that it is offering to pay the H-1B worker is not lower than similar US workers.  Second, the LCA includes a mandatory mechanism whereby H-1B employers must notify potential US workers of their right to contact the Department of Labor (DOL) if they believe that the H-1B employer is engaging in prohibited behavior.

There are two ways that the LCA is utilized in the H-1B process.  First, new H-1B petitions must be submitted with an LCA that has been certified by the DOL.  Second, if an employee is going to change worksites, the employer must provide new Notice to the workers at this new worksite.  In some instance, the H-1B employer must file a new LCA with the DOL and wait the seven days for the DOL to certify the new LCA.  In other instances, the H-1B employer must not only obtain a new certified LCA but must also file a new H-1B.

The Government Shutdown

Unfortunately with the government shutdown the DOL has shuttered the LCA system.  It is impossible to file LCAs.  The DOL has not given the public any guidance on how to handle new H-1B petitions nor how to handle new situations where a new LCA is required.

On account of the fact that LCAs cannot be filed, H-1B employees should not change worksites in instances where a new LCA would normally be required.  This is the safest approach.  Once the government shutdown ends, H-1B employers can file an LCA and the employee can move once the new LCA is certified and in place.

On the bright side there are some instances when a new LCA is not required. 

•  When H-1B workers change worksites, but the new worksite is still within the prior LCA metropolitan area, a new LCA is not required.  An H-1B employer must still post notice at the new worksite. 
•  The LCA rules allow H-1B employees to work at new worksites when the new worksite is peripatetic or very short-term.  For example a new certified LCA is not required if an H-1B employee is attending meetings for a few days in a new location.

If business needs demand that an H-1B must change worksites, then the H-1B employer must be aware that it may be technically violating law, although a legal argument could be made that compliance with the law was impossible on account of the shutdown.  Penalties can range from $1,000 - $35,000 per violation.  Debarment from the H-1B program could also occur.  After considering these potential penalties, an H-1B employer still feels compelled to move the H-1B worker, we urge that H-1B employers take all three of these additional measures to mitigate risk:

·         Make sure to post LCA posting.  Even though we would not be able to file an LCA, we would still be able to post Notice at the destination worksite.  We can prepare the Notice Posting for you.

·         File an LCA at the conclusion of the shutdown.

·         File an amended H-1B at the conclusion of the shutdown and the certification of the new LCA.

WELCOME H-1B WORKERS

Lost amid the federal government shutdown was the fact that the new fiscal year began on October 1.  With that date thousands of H-1B workers began their H-1B status.  

Those who obtained H-1B visas via overseas US Consulates and Embassies were eligible to enter the US, generally after September 20.  People in the US in other status -- e.g. F-1, Students; H-4, Derivative spouses -- had their nonimmigrant status change by operation of law on October 1. 

H-1B employers are reminded to update their Form I-9s to reflect these employees new H-1B nonimmigrant status.  The USCIS increasingly is auditing companies I-9 files and issuing fines to the non-complaint. (Although one piece of good news from the shutdown: DOL investigations have been suspended.)

US GOVERNMENT SHUTDOWN IMPACTS SOME IMMIGRATION SERVICES

Congress’ failure to establish a budget for Fiscal Year 2014 (start date, October 1, 2013) has an impact on some areas of immigration.  If you have any questions about how the government shutdown may impact your petitions, please contact Musillo Unkenholt.

United States Citizenship and Immigration Services:  USCIS operations continue despite the Federal Government shutdown, because fee-for-service activities performed by USCIS are not affected by a lapse in annual appropriated funding.  H-1B, L-1, I-140, and I-485 petitions and applications are expected to continue processing with little impact as a result of the federal government’s shutdown.

All USCIS offices worldwide are open for interviews and appointments as scheduled. E-Verify is an exception and is unavailable during the shutdown. For more information about how the shutdown is effecting E-Verify please visit www.dhs.gov/e-verify.

Department of Labor: Most DOL functions that impact immigration will stop working as a result of the federal shutdown.  The DOLwill neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. The DOL’s web site, including the iCERT Visa Portal System and the PERM system, have become static and are unable to process any requests or allow authorized users to access their online accounts.

Department of State: The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued. Visa issuance will be available in consulates that have adequate funding to continue operating.  Please contact our office to determine if the consulate you plan to attend will continue operating. 

Customs and Border Patrol: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual.  The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border at this time.

State Agencies:  State agencies, such as driver’s licenses and professional licenses (e.g. Registered Nurse, Physical and Occupational Therapy licenses), are not impacted by the federal shutdown.

ALL IMMIGRANT VISAS HAVE BEEN USED FOR THIS FISCAL YEAR

AILA has confirmed with the State Department that all of this fiscal year’s immigrant visas have been used.  This is normal in September.  The US Fiscal Year ends on September 30. 

USCIS will continue to process pending adjustment cases, and is able to submit visa number requests for all cases which are being finalized.  The State Department will place requests in a “Pending Demand” file.  Eligible cases which have been submitted to the State Department that are within the October cut-off dates will be automatically authorized effective October 1, 2013.

CHANGE IN POLICY FOR ONTARIO NURSES IN THE US

The below post was brought to my attention by Michigan attorney Marc Topoleski.  Much of this post is taken directly from a recent email exchange between us.

Canadian nurse licensure in Ontario is governed by the College of Nurses of Ontario.  The CNO has changed their policy for Non- Practising Ontario nurses, such as those who have moved to the US. 

Under the new policy non-practicing Ontario nurses must convert their CNO membership to a registration in the Non- Practising Class.  This requires an annual fee.  A nurse registered in the Non- Practising class cannot practice nursing in Ontario, not even in a volunteer capacity.  These nurses also have a second option.  They can resign their CNO membership. 

One question that Marc and I have is whether this new policy will have any impact on Canadian nurses from Ontario at the time of their VisaScreen renewal.  Neither of us has yet had a nurse in the Non-Practising class apply for a Visa Screen renewal.

Our opinion is that if an Ontario nurse allows his/her license to go inactive (by converting to the Non-Practising class) or lapse (by failing to renew license because they are not actively practicing in Ontario that this should have no impact as part of CGFNS’ license validation. 

Marc also passes along additional notes about nurses returning to Ontario.

Ontario nurses who choose to maintain registration in the Non-Practising class need to apply for reinstatement of their CNO membership if they want to return to Ontario to practice nursing.  The reinstatement process includes passing the Ontario RN Jurisprudence Examination.  The RN Jurisprudence Examination is an online examination that assesses an applicant's knowledge and understanding of the laws, regulations, by-laws, practice standards and guidelines that govern the nursing profession in Ontario.  There is a $40 fee (CDN) to take the exam.  This exam is different than the Canadian Registered Nurse Examination (CRNE), which is the Canadian national examination that measures the competencies required of nurses at the beginning of their practice.

For Ontario nurses who choose to resign their CNO membership, they can apply for reinstatement within 3 years of the date their CNO membership ended without having to take any examinations, but would have to pay reinstatement fees.  However, if a nurse wanted to return to practice as a nurse in Ontario after 3 years from the date their CNO membership ended, it appears they would have to apply for licensure under the same process as first-time applicants.

CGFNS TO DELETE FILES UNLESS USERS PURCHASE eSAVED

CGFNS is the only organization authorized by USCIS to issue Healthcare Worker Certificates (Visa Screen) to Registered Nurses. Among other things, CGFNS verifies the authenticity of the nurse's primary source documents, including the nurse's education.  As part of their normal course of activity, CGFNS saves documents for four years. 

CGFNS is now launching their eSAVED system. By purchasing eSAVED an applicant can have their electronic files saved at CGFNS for an additional year for $25. CGFNS is also offering to store files for an additional four years for $50, which represents a 50% savings on a year to year basis. The four year program at $50 is a promotional rate, conditioned upon applicant's purchasing by September 30, 2013. 

 CGFNS also issues Visa Screens for other healthcare occupations, such as Physical Therapists and Occupational Therapists, although these are much smaller programs when compared to their monopoly on Registered Nursing certifications.

OCTOBER 2013 VISA BULLETIN ANALYSIS

The Department of State has just released the October 2013 Visa Bulletin.  This is the first Visa Bulletin of the 2014 US Fiscal Year, which begin October 1, 2013.  There was virtually no change in the dates from the September 2013 Visa Bulletin.  The September 2013 Visa Bulletin had a massive promotion of dates.

The lack of retrogression  in the new Visa Bulletin was a welcome surprise.  The Department of State's comments in the prior Visa Bulletin led some to fear that there would be a retrogression.  In those comments, the  DOS explained that the massive promotion of dates in the September 2013 Visa Bulletin was done to insure that all available Fiscal Year 2013 immigrant visas were used before the FY-2013 year's end on September 30, 2013.

It is not expected that the next few Visa Bulletins will include significant promotions of dates.  We may see the next promotions of dates after the New Year.

Here is the chart:

October 2013 Visa Bulletin
	All Other Countries	China	India	Philippines
EB-2	Current	15SEP08	15JUN08	Current
EB-3	01JUL10	01JUL10	22SEP03	15DEC06

EB-2 IMMIGRANT VISAS FOR PHYSICAL THERAPISTS

Because Physical Therapists have been designated by the U.S. Department of Labor as a ‘Schedule A occupation’, they are exempt from the labor certification process (PERM) required for most employment based immigrant visas.  Physical Therapy positions are eligible for EB-2 classification. The EB-2 category is the immigrant visa classification for positions requiring at least an advanced degree (Master’s degree or higher) or a Bachelor’s degree and five years of progressively responsible experience.

Generally speaking there is no backlog for EB-2 visas for most countries (excluding India, Mexico, and China) and thus an immigrant visa can be obtained “immediately” as soon as the normal case processing is completed. In contrast, obtaining an immigrant visa for an individual filing in the EB-3 classification is currently a lengthy process which takes between four to seven years.

The USCIS has struggled with processing Physical Therapist EB-2 petitions.  At issue is not whether these positions require a Master’s Degree.   At issue is whether the Beneficiaries hold the US equivalent of a Masters Degree.  The problem stems from the fact that many Philippine colleges issue a diploma labeled “Bachelors” degree”.  When US educational evaluators review the diploma, coursework, and credit hours, they equate this education background to a US Masters Degree.  Educators such as FCCPT and 53 US state and territory licensing jurisdictions all universally find that these degrees are equal to a US Masters Degree.  All of the private educational evaluators that we have worked with have also issued Masters equivalent opinions.  The opinion appears to be universal.

Well, almost universal.  The USCIS often looks to AACRAO as its preferred educational evaluator.  AACRAO’s EDGE evaluation system alone has determined that these Philippine degrees are not equal to a US Master’s Degree.  Throughout the summer MU Law has filed several similar briefs explaining this issue to the USCIS’ Administrative Appeals Office.  While we think we have the better argument, the decision-making rests in the AAO’s hands.  We will let you know as soon as the AAO releases their decision.